Justices question interrogation tactic

The tactic, described in some police training manuals and promoted on a website on policing, involves two rounds of questioning of a suspect at the police station -- the first to get a confession without advising the suspect of the right to remain silent and have a lawyer, the second to have the confession repeated after giving what are known as Miranda warnings.

The theory is that the initial questioning would soften up the suspect and get a confession that would not be used as evidence because it would violate the Supreme Court's 1966 decision in Miranda v. Arizona, which requires that suspects be warned about their rights before police questioning. A second round -- supposedly valid because rights warnings would be given before it begins -- would seek to exploit the "cat being out of the bag" and produce a confession that could be used at trial.

The Supreme Court closely examined that approach in a Missouri case, one of two hearings yesterday that brought a new examination of how the Miranda rule is working. The other case, a federal gun prosecution in Colorado, questions whether prosecutors could use a gun or other physical evidence that the suspect had discussed during the questioning without having been warned of his rights.

In both cases, what appeared to be a majority of the court seemed skeptical in reacting to public defenders' arguments that the police tactics at issue would seriously undercut Miranda rights. Chief Justice William H. Rehnquist, for example, said the court, in a series of decisions since the original Miranda ruling, has relaxed the limits on prosecutors' use of statements made without warnings.

But the new police method of back-to-back interrogation sessions, with an intentional refusal to give warnings before the first round, drew sharp criticism from a number of the other justices.

"It would be intolerable," Justice Stephen G. Breyer commented, "to have police going around purposely violating Miranda. If we allow them to do it, they might do it a lot." He suggested that the court might want to add to the rights warnings, requiring police to tell the suspect before the second round of questioning that nothing said in the first round could be used as evidence.

Justice Ruth Bader Ginsburg said the Miranda decision "has all over it" a simple message to police: "inform at once" so that suspects know their rights. "What you're talking about," she told a Missouri prosecutor, "is: Don't inform at all until you've got something. Everybody has always understood that police were supposed to give Miranda warnings upfront."

Justices David H. Souter and John Paul Stevens also criticized the police tactic, but the five other justices either kept silent or suggested that a confession after a rights warning would be valid as long as it was not coerced.

In the Missouri case, the chief deputy state attorney general, Karen K. Mitchell of Jefferson City, said the tactic should not be a violation of Miranda, even if a second round of questioning began right after the first.

But Mitchell expressed doubt that police would adopt it as routine practice, because they "would have a lot to lose" because of the risk that they might not get a confession in the second round.

The failure to warn in the initial questioning, she said, also might become a factor in determining whether the second round was conducted within constitutional rules.

Amy M. Bartholow, a public defender from Columbia, Mo., said that, even if using the two-round approach is a "role of the dice" for police, they would not use it "if it didn't work." The policeman involved in the questioning in this case, she said, had been using the tactic for 8 to 10 years.

The Bush administration weighed in to support the constitutionality of the police tactic. Irving L. Gornstein, an assistant to the US solicitor general, said it would be "a serious cost to the administration of justice if you exclude a statement that was warned."

The Missouri case involved a Rolla woman, Patrice Seibert, who was convicted of second-degree murder and sentenced to life in prison. In questioning her about the death of a mentally ill youth living with her family, police deliberately avoided warning her of her rights, leading to a confession about a plot to burn up the youth in the family trailer.

Police promptly began a second interrogation, told her of her rights, which she waived, and obtained the same confession. It was used to support her conviction.

The Colorado case involved a Colorado Springs man who, without being given his full Miranda warnings, told officers where to find a gun that he illegally possessed. That led to a charge of possession of a gun by a convicted felon. Lower courts threw out the gun as evidence.

Final decisions in the two cases are expected by next summer.